Vail Law: Understanding executive privilege

Rumors are a-swirl that the president may try to stick a cork in former FBI Director James Comey ahead of his scheduled testimony before the Senate intelligence committee Thursday. As part of the Russia investigation ferreting out possible collusion with the Trump campaign, Comey is expected to testify about his conversations with the president in which it has been reported, the president cajoled or threatened Comey to back off from the FBI’s investigation of former National Security Advisor Michael Flynn.

Besides the potentially sensational nature of Comey’s testimony, the former director’s appearance before the Senate may set up a test of the White House’s willingness to cooperate with the investigations into Trump and his associates. In recent days, Washington has been abuzz with speculation as to whether the highly anticipated hearing might encourage Trump to invoke executive privilege in order to try and prevent Comey from potentially spilling damning beans.

What this raises, of course, is understanding exactly what “executive privilege” is, how it may be wielded and whether it could be trotted out to block the former FBI director from shining light in questionably murky corners that the White House may prefer obscured.

What can presidents withhold?

President Dwight D. Eisenhower was the first president to coin the phrase “executive privilege” — but not the first to invoke its principle — namely, that a president has the right to withhold certain information from Congress, the courts or anyone else in order to preserve the confidences of office. In theory, the privilege applies even when a president is faced with a subpoena. It is a myth, however, that the privilege lies cozily ensconced within the Constitution. In fact, it does not. Nowhere in that grand and seeping coda does the Constitution mention, hint or even sniff at the term or the concept of executive privilege. Instead, presidents both large and small have argued that executive privilege is implied in the constitutionally mandated separation of powers.

In order to do their jobs, presidents have argued, they must have candid (and therefore completely confidential) advice from their advisers. What’s more, previous White Houses have asserted, their aides simply won’t be willing to offer such advice if they suspect that they might one day be called to account, under oath, before Congress or some other head-hunting body.

So long as there have been presidents, there have been periodic dustups over privilege. In 1792, none other than George Washington rebuffed the Congress and the courts when they sought information about a failed campaign against Indian tribes along the Ohio River. Uncharacteristically, Washington lost that particular battle and ultimately handed over the papers that Congress had requested. But the precedent of presidential indignation had been raised and, throughout the years, many other presidents have fallen back upon that phantom right.

More recently, President Richard Nixon, in attempting to thwart the tightening noose of the Watergate investigation, failed in his attempts to withhold White House audio recordings from special prosecutor Leon Jaworski. Nixon handed over the tapes and, four days later, he resigned from office. In his memoirs, Nixon reflected, “I was the first president to test the principle of executive privilege in the Supreme Court, and by testing it on such a weak ground, I probably ensured the defeat of my cause.”

Rather than settle the matter once and for all, the Nixon challenge resulted in perhaps greater ambiguity than ever. In its ruling on the Nixon tapes, the Supreme Court noted “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties.” While rejecting Nixon’s specific claim of privilege, the court left a crack of light for future claims by future presidents.

It is worth bearing in mind too that the Nixon case was part of a criminal investigation. At least for now, the case involving the Trump administration is not.

A couple of twists

An interesting twist arises here on two grounds. First, Director Comey is no longer Director Comey. He is now, like you and I — only a great deal taller — a private citizen. Does executive privilege extend to private citizens if they choose to testify? Traditionally, aides to the president (or presumably even former aides) used executive privilege as a shield; they did not want to testify about a certain this or that. But here it’s different.

One gets the impression that former Director Comey is chomping at the bit to have his say. What’s more, despite the awesome power of the presidency, that power is not unlimited. So long as one’s conduct is lawful, the president cannot compel a private citizen to do or not do anything at all. Few would argue that the First Amendment right to free speech is anything but lawful. If Director Comey wants to have his say and is acting under command of the Senate to appear and testify, one must believe that the president cannot stop him.

The second ground invokes a general principal of law. Stated broadly, one cannot use the same law or legal theory at the same time as both a sword and shield. Presumably, if the president tries to silence Comey on the grounds of privilege, his actions would be vigorously contested in that he himself brought Comey’s statements into issue through his tweets.

In particular, the president has broadcast that Comey told him three times that the president wasn’t under FBI investigation and further suggested that there may be tapes of the conversations about which Comey is prepared to testify. In other words, the president can’t on one hand boast about what Comey said and on the other invoke privilege to silence Comey.

Something to Hide?

Besides any supposed constitutional right the president may or not have regarding privilege, there is the very real political question to consider too. In part, what is behind the investigation is whether the Trump campaign cum Trump administration colluded with the Russians to win the White House and/or to undermine American interests. The other shoe about to fall, however, concerns the administration’s response to these allegations. Stated simply, did the president obstruct or attempt to obstruct justice? One might recall it was the cover-up, rather than the crime itself, that ultimately crumbled the earth beneath President Nixon’s feet and forced his resignation.

Even if the president is as innocent as a new lambkin in fresh clover regarding the alleged collusion, then his obstruction of the investigation — if meritorious — might bring him to his knees. Would invoking executive privilege at the least lend the impression that the president has something damning to hide?

Your call, Mr. President. Your move.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices of counsel in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Robbins@SLBLaw.com.